Forced adoption support services scoping study Daryl Higgins, Pauline Kenny, Reem Sweid and Lucy Ockenden Report for the Department of Social Services by the Australian Institute of Family Studies February 2014

46.1Restorative justice

Restorative justice is an area that has been increasingly discussed among those affected by forced adoption and removal policies and practices (including the impacts of trauma) as a means for healing and recovery. This section will therefore present an overview of the practice of restorative justice from a criminal law perspective, followed by a discussion in the context of those affected by forced adoptions.

47Restorative justice practices in areas of criminal law

People who have experienced trauma that relates to criminal behaviours or breach of justice often experience difficulties finding resolution through criminal justice processes—and so there has, of late, been a focus on what is termed “restorative justice”. A key element of such practices are restorative justice meetings—in which offenders come face-to-face or in other indirect ways meet with victims, with the dual aim of improving the criminal justice system (e.g., by increasing guilty pleas and therefore conviction rates) and victims’ experiences. It has been used in areas such as juvenile justice, family violence, child sexual abuse and adult sexual assault cases (see Daly, 2011), and has strong roots in Australia and New Zealand (Strang, Sherman, Mayo-Wilson, Woods, & Ariel, 2013).

The aim of restorative justice processes, as noted by Daly (2011) is “dialogue, encounter, and repairing the harm caused by crime”. In the criminal justice context, it is not a private dispute between two parties, but between the offender and the state (where the victim is the “witness”, or the site of the crime). It is not meant to be a replacement for the criminal justice system—but a different way of being focused on the needs of victims and achieving a sense of “justice” for them, when often criminal justice proceedings leave victims traumatised (particularly those who have personally experienced the crime, such as victims of assault or rape), and without any sense of control over the process.

48Daly (2011) explained:

Restorative justice processes (or other types of informal justice practices) are set in motion only after a suspect has admitted to an offence. Restorative justice has no mechanism of adjudicating “facts”, and therefore cannot replace the criminal justice system … Depending on the legal context, the aim is for the participants to discuss the impact of the offence and to censure the behaviour, for victims to voice their story and ask questions, and for participants to decide on an appropriate outcome. (p. 10)

Restorative justice processes are designed to place the people most affected by crime—the victims—at the centre of the process (NSW Government Corrective Services, 2014). Daly (2011) provided some caution to this expectation of victim-centred practice:

Although restorative justice pays greater attention to crime victims, practices can often be offender-centred. Despite what many say or think, the aim is not to “restore” relations in a literal sense, although this may be desired in some cases (see Daly, 2002b, 2006b, for a critical analysis of restorative justice; and Daly, 2000; Duff, 2003, for consideration of the role of retributive censure in restorative justice). (p. 10)

As well as being an alternate justice process, Daly (2011) also provided an example of how restorative justice principles can be used within court proceedings, focusing on perpetrators admitting the truth of their criminal behaviour and being faced with the consequences:

Truth telling is the defendant describing what they did in detail and answering the victim’s questions. Victim participation is the victim/survivor telling the defendant what the impact of the offence was. (p. 18)

A number of other processes for increasing victim participation that sit outside the legal process may or may not considered “restorative justice” per se. These include victim–offender meetings (instead of issuing legal proceedings);
victim–prisoner meetings (in those circumstances where offenders have pleaded guilty); and memorials, days of reflection or action and cultural performances that bear witness to people’s suffering and experiences of victimisation (Daly, 2011).

In a report to the Criminology Research Council, Strang (2001) provided an overview of restorative justice programs in Australia. Based on the work of Van Ness, she summarised the principles of restorative justice as follows:

• Crime is primarily conflict between individuals resulting in injuries to victims, 
communities and the offenders themselves; only secondarily is it lawbreaking.

• The overarching aim of the criminal justice process should be to reconcile parties while repairing the injuries caused by the crime.

• The criminal justice process should facilitate active participation by victims, offenders and their communities. It should not be dominated by the government to the exclusion of others. (Strang, 2001, p. 3)

According to the Victorian Association for Restorative Justice website:

The restorative philosophy is, in essence, that the negative effects that people and incidences have on other people are not primarily issues of criminality or personal deficiency, but issues of interpersonal human relationships. (“Who we are”, para. 1)

In their systematic review of the efficacy of restorative justice conferencing, Strang et al. (2013) found that:

Victims’ satisfaction with the handling of their cases is consistently higher for victims assigned to RJCs [face-to-face restorative justice conferencing] than for victims whose cases were assigned to normal criminal justice processing. (p. 5)

However, we are not aware of any data that show whether restorative justice processes lead to improvements in wellbeing for victims in the longer term. Cossins (2008) argued that empirical evidence to show that restorative justice processes provide victims of child sexual assault with a superior form of justice are lacking.

What is also interesting to note is that restorative justice practices are not a one-way street. It is not just about perpetrators of harm facing victims and apologising. Part of the interaction is about what the “victim” brings to the process, and how this can assist with their healing. For example, as Allan, Allan, Kaminer, and Stein (2006) noted:

As forgiving may lead to an improvement of mental health, from a therapeutic jurisprudence perspective it is important to establish what aspects of judicial procedures can be changed to promote forgiving. (p. 87)

One study has also noted that a potential negative consequence of restorative justice practices is the risk of secondary victimisation—where the victim becomes re-traumatised through the process that was intended to help them (Wemmers, 2002).

49Forced adoptions, trauma healing, and restorative justice

The main focus of restorative justice practices is victim–offender conferences; however, these only take place after an adult offender is sentenced. So there is a lack of clarity as to how such a process could work in relation to meeting the justice needs of those affected by illegal practices from past adoptions where there may be diffused responsibility across a range of individuals and organisations, and often individuals may no longer be working for the organisations or even alive. We were not able to identify any literature describing directly how such a process might or could work in relation to past forced removal and adoption policies and practices. Although restorative justice as it has been developed to address individual criminal behaviour (and its focus on victim–offender conferencing) may have limited applicability, the wider use of restorative justice principles may help shape a service system response for those affected by forced adoption and removal policies and practices in Australia.

Zehr (2008) argued that restorative justice “provided a context and language for specifically naming and dealing with wrongdoing and injustice” (p. 13). He explained:

As a conceptual framework, restorative justice seeks to reframe the way we conventionally think about wrongdoing and justice: away from our preoccupation with lawbreaking, guilt and punishment, toward a focus on harms, needs and obligations. (Zehr, 2008, p. 3)

In the context of past forced adoption and removal policies and practices, it is important to re-visit the experiences reported by those directly affected that form the basis for pursuing the course of restorative justice for some:

mothers being used for the training of medical students;

mothers being sexually assaulted by medical professionals;

mothers experiencing medical neglect or maltreatment;

mothers being tied to beds, forcibly held down, having pillows placed over their faces and having sheets held up to shield the view of their son/daughter during labour;

mothers being administered drugs that caused impaired judgement/capacity to make informed decisions;

mothers and fathers being informed that their son/daughter was deceased when they were not;

the unethical and illegal obtaining of consent to adopt (or no consent obtained at all);

adoptees as babies being used for medical experimentations;

adoptees being placed with abusive adoptive parents; and

adoptees being lied to regarding the circumstances surrounding their adoption, including the obtaining of consent from their parents.

Based on the principles of restorative justice, “truth and reconciliation” processes have been used in a range of post-conflict reconstruction processes as a way of understanding past abuses, listening to the experiences of both victims and perpetrators, and attempting to repair the damages that violence or other rights violations have wrought—individually and communally (Androff, 2010).

Zehr (2008) described how restorative justice was used as a conceptual framework to underpin South Africa’s Truth and Reconciliation Commission. The key principles focus on addressing needs and responsibilities, creating opportunities for storytelling (and “re-storying”), empathy, and addressing shame and victimisation. The guiding questions that he claimed are fundamental to the restorative justice process can be seen as central to the question of scoping the service system response to the needs of those affected by past adoption practices:

Who has been hurt in this situation and what are their needs?

What obligations result from these hurts and needs, and whose obligations are they?

What are the causes of these hurts and needs, and what can be done to address them?

Who has a “stake” in this situation?

What is the appropriate process to involve these stakeholders in an effort to put things right and resolve the conflicts? (Zehr, 2008, pp. 12–13).

In his evidence to the Victorian inquiry into institutional child abuse, Professor Patrick Parkinson talked about how the restorative justice process can be applied to historic abuse within Church institutions. He described the compensation schemes and ex-gratia payments as using some of the ideas of restorative justice—although it is important to make the distinction between the notion of compensation (which is not restorative justice per se) and some of the processes that might lead an agreement on payments, such as victims being given a voice and active participation, and opportunities created for parties to reconcile (Parkinson, 2012). Importantly, in relation to legal avenues for redress, the Senate Inquiry report (2012) emphasised that:

In cases where illegality is alleged in the adoption process the prosecution of those responsible should not be hindered by statutes of limitation. The committee urges all states and territories to examine the limitations for infringements of adoption legislation to ensure that they do not act as a barrier to litigation by individuals who were not made aware of their legal rights at the time that offences may have been committed. The committee does not want people who have been damaged by their experience of forced adoption to be damaged further by having to endure a long and bruising legal journey that may ultimately be unsuccessful due to a legal technicality. (p. 245)

However, the strongest theme from both the Senate Inquiry report (2012) and the AIFS National Study (Kenny et al., 2012) was not the need for direct compensation schemes, but rather for resources to be made available to meet the current needs, in terms of physical and mental health services, to address the trauma, grief and loss, and the financial costs associated with accessing information, searching, and making contact with family.

To that extent, some of the principles can be applied within service models that are developed to address the needs of all those affected by adoptions from the closed adoption period—including mothers, fathers, adopted persons, adoptive parents and wider family members. But restorative principles also involve the professionals, and agencies and institutions involved in the adoptions—and the broader Australian society that condoned, or sat silently by during the height of adoptions, particularly in the 1960s and early 1970s. As with victims of other crimes, such as sexual assault, those who experienced the illegal, forced separation of parents and children that occurred in past adoption practices may benefit from having a “menu” of options that may or may not articulate with criminal justice.

50Following on from the principles of restorative justice, restoration activities could focus on:

addressing trauma and other mental health consequences of the past events (through evidence-based therapeutic interventions for the mental ill health associated with past practices, such as depression, anxiety, PTSD, attachment disorders, and personality disorders, delivered by appropriately trained and skilled clinicians);

repairing the injuries caused to the relationships between sons/daughters and parents (individual therapy, family therapy, mediation, mentoring, peer-support and other support services to address the rift between parents and children separated by adoption);

repairing the injury caused to other current relationships (therapy to address the interpersonal and intrapersonal difficulties experienced by many with past adoption experiences);

opportunities for truth-telling, storytelling and acknowledgement; and

overcoming shame and recognising past actions through public activities such as memorials, days of reflection or action, art, exhibitions, and other avenues for raising awareness in the broader community.

51Exclusion, transparency, or reparations by providers associated with past practices

Obviously, the National Apology—on behalf of the Commonwealth Government, and therefore on behalf of the people of Australia—as well as the separate state/territory apologies issued by all jurisdictions (with the exception of the Northern Territory) is an important first step. Apologies from the hospitals and other agencies that were the focus or site of many of the practices have also been seen as a critical step. However, there are many agencies involved with adoptions in the past that have not issued formal apologies.

Some clients may never accept certain providers because of the provider’s involvement in the client’s past adoption experience (Senate Community Affairs Reference Committee, 2012) and have deep feelings of mistrust towards these particular agencies. The committee noted in the Senate Inquiry report (2012) that these services may “discourage people using services, further traumatise the mother, or unintentionally repeat the pattern of service providers having a controlling role in reunion, just as they had in separation for adoption” (p. 229).

This raises the complex issue of how to deal with the “conflict of interest” by agencies currently providing services in relation to past adoptions (e.g., information provision, counselling, reunion, or other post-adoption supports). Many of the agencies that currently provide social welfare services—including post-adoption support—are the same ones that:

in the past were running the children’s homes, maternal hospitals, or adoption services engaging in the practices for which our former Prime Minister apologised; and/or

are managing the process of current adoptions on behalf of state/territory child protection/welfare departments.

This emerged as a significant issue in the study by Kenny et al. (2012), as well as in evidence submitted to the Senate Inquiry. Thought must therefore be given to the appropriate options for ensuring that funds committed by government under the apology are appropriately spent, and that the choice of service provider doesn’t cause further anxiety or distress to the people the government intends to help.

Summary Restorative justice practices predominantly focus on victim–offender conferences. It is therefore unclear how restorative justice processes could work in relation to past adoption practices, because it is difficult to determine the responsible parties when responsibility was diffused across a range of individuals and organisations. Furthermore, some individuals may have changed professions or may no longer be alive. However, findings from the Senate Inquiry and the AIFS National Study identified that rather than direct compensation schemes, restoration activities could focus on providing resources to meet the current needs. Restoration activities could include: addressing trauma and other mental health consequences through evidence-base therapeutic interventions; repairing the injuries caused to relationships between sons/daughters and parents, and other relationships; opportunities for truth-telling, storytelling and acknowledgement; and overcoming shame and recognising past wrongs through public activities and community awareness campaigns.